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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 276
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Mohammed v Moiloa (45914/07) [2009] ZAGPPHC 276 (31 August 2009)
HIGH
COURT OF SOUTH AFRICA
NORTH
GAUTENG PRETORIA
CASE NO: 45914/07
DATE:
31 AUGUST 2009
GHANIEM,
MOHAMMED
PLAINTIFF
V
MOILOA,
GM
DEFENDANT
JUDGMENT
SAPIRE,
AJ
The
plaintiff is claiming damages from the defendant arising from a
collision between their respective vehicles which took place
in Louis
Botha Avenue Houghton Estate Johannesburg. The incident occurred at
approximately 13h30 near a traffic light controlled
T junction of
Acorn Lane with Louis Botha Avenue.
The
parties have agreed that the issues of negligence and the amount of
the award be separated, and that the former be disposed
of first. The
trial proceeded on that basis.
The
Plaintiff recounted in evidence that he was the driver of his motor
vehicle. He entered Louis Botha Avenue from Acorn Lane at
the T -
junction when the traffic lights were in his favour, turning to his
right to join traffic travelling towards Orange Grove
which lies
further to the north. The plaintiff further said that he had
travelled some 30 meters when he noticed in his rear view
mirror that
a car was approaching from behind at what he estimated a high speed.
It appears to him that this car was going to collide
with him but he
could do nothing about it. Shortly thereafter the car approaching
from the rear, driven by the Defendant, did in
fact collide with the
right rear end of the plaintiff’s car.
The
defendant’s car stopped ahead of the plaintiff which was pushed
onto the sidewalk. Plaintiff’s car was seriously
damaged as a
result of this collision.
On
this account the defendant was to blame for the accident and there
would be no question of apportionment.
The
defendant however testified and offered a different version. He said
that he too entered Louis Botha Avenue from Acorn Lane.
He says that
there was a line of cars headed by the plaintiff’s car followed
by another car after which the defendant followed.
All three entered
Louis Botha Avenue turning to the right. He says that they were all
travelling very slowly when suddenly the
car ahead of him swerved to
the right to avoid colliding with the plaintiff’s car which had
come to a sudden stop.
The
defendant said that he too tried to swerve to his right but was
unable to clear the plaintiff’s car which he clipped on
the
right rear side as he passed. He attributes the collision to the
plaintiff having stopped suddenly at a point where he should
not have
done so. He suggested that the plaintiff intended to make a u-turn.
This version abounds with improbabilities and is not
an accurate
description of the events which led up to the collision.
Defendant’s
plea in which negligence is attributed to the plaintiff describes
such negligence, referring to the plaintiff
in these terms:
(a)
He drove at a speed which was excessive in the circumstances;
(b)
He failed to accelerate, swerve aside, stop, slow down or take any
other reasonable steps he could and should have taken to
avoid the
accident and
(c)
He failed to give other car users right of way.
These
allegations are not supported in any way by defendant’s
testimony. The difference between what is pleaded and what was
stated
in evidence makes it difficult to give credence to what the defendant
has stated.
The
balance of probabilities lies heavily in the plaintiff’s favour
and I find that it was defedant’s negligence which
was the sole
cause of the accident
Sapire
AJ